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July 23, 2015

An Oklahoma prosecutor used seized funds from civil asset forfeiture to pay down student loans. Another lived rent-free in a seized house for years.

Funds and property seized by Oklahoma law enforcement agencies have gone missing or have been used for personal or other improper purposes, state audit records reveal.

Among the violations were using seized money to pay on a prosecutor’s student loans and allowing a prosecutor to live rent-free in a confiscated house for years, records show.

The cases were cited in a state commission hearing Tuesday in which authorities objected to new legislation aimed at curbing abuses of civil asset forfeiture by state and local law enforcement agencies. The bill, sponsored by Sen. Kyle Loveless, R-Oklahoma City, has spurred heated opposition from district attorneys and sheriffs.

Forfeiture involves law enforcement agencies seizing private property and money believed to have been used in drug trafficking or other crimes. After the assets are forfeited in court, authorities can keep the money or property even when the suspect is never convicted or charged.

“The more I learn about it, the more upset and outraged I get that we’ve allowed this process to get to where it’s at,” Loveless said in an interview. “Your property is considered guilty until proven innocent. It is up to the individual to petition the government after they’ve seized it to prove that it is innocent. To me, that, on its face, is un-American.”

Law enforcement officials counter that forfeiture is necessary to combat drug trafficking and say that abuses are rare. They say Loveless is hyping the issue and using scare tactics to push his bill.

“I’m very concerned that’s the line he’s taking in that,” said District Attorney Greg Mashburn, who represents Cleveland, Garvin and McClain counties and sits on the commission overseeing the Oklahoma State Bureau of Narcotics and Dangerous Drugs. At the commission meeting Tuesday, he referred to statements on forfeiture misuses that Loveless made Monday at a Garvin County Republican meeting.

“That may be something we need to address at our next quarterly (commission) meeting, just to stay on top of it, because it’s going to be an issue that we need to address and educate people on. They’re telling scary stories on the other side, and it’s just not accurate,” Mashburn said.

Police seizures have been in place for decades throughout the country. After a seizure, a judge is asked to grant forfeiture, and ownership is then often transferred to the District Attorney’s Office. That office splits the money or the proceeds from the sale of property with local law enforcement agencies. Property may include vehicles, houses and businesses. The money may be in cash or bank accounts.

Under state law, the proceeds from forfeited cash or property are supposed to be spent on enforcement of drug laws and drug-abuse prevention and education.

Loveless’ bill would not allow seized money or property to be forfeited unless the suspect is convicted.

Law enforcement officials say forfeiture without conviction is necessary to stop drug money from moving through the state.

Travis White, general counsel for the Oklahoma Bureau of Narcotics, said that law enforcement is careful when it comes to seizures. Not allowing forfeiture unless a suspect is convicted would mean drug profits go untouched, he said.

White cited instances where a vehicle is stopped and thousands of dollars in cash are found hidden in a wheel well; the suspect says he didn’t know it was there, and officers can’t prove he’s lying. Without seizure, the suspect would drive on with the cash. With seizure, the suspect is forced to file in court later to claim the money, he said.

After property or money is seized, however, it has been misused or not accounted for by authorities in some cases, according to audits of district attorneys’ forfeiture accounts by the State Auditor and Inspector’s Office.

A 2009 audit of the District Attorney’s Office that represents Beaver, Cimarron, Harper and Texas counties found that a Beaver County assistant district attorney began living rent-free in a house obtained in a 2004 forfeiture. A judge had ordered the house sold at an auction, but the prosecutor lived there through 2009.

Utility bills and repairs made to the house were paid out of the district attorney’s supervision fee account, the audit states.

The audit recommended the house be sold and the supervision fee account be reimbursed.

“These conditions resulted in expenditures that were not for the enforcement of controlled dangerous substances laws, drug abuse prevention and drug abuse education,” the report stated.

The audit also found the District Attorney’s Office didn’t report the benefit as income for tax purposes.

In a 2014 audit of the DA’s office representing Washington and Nowata counties, the State Auditor’s Office found that $5,000 in forfeiture funds had been used to make payments on an assistant district attorney’s student loans.

The report said the district attorney maintained the expense was justified because most of the cases the assistant DA prosecuted were drug cases.

After the issue came to light, the Oklahoma District Attorneys Council reimbursed the $5,000 using funds from its own student-loan program, the State Auditor’s report states.

An Oklahoma Watch examination of audits from 2007 to 2014 also shows at least a dozen cases of forfeited cash, guns and vehicles missing or not inventoried.

In a 2014 audit of District 21, which is Mashburn’s district and includes Cleveland County, three firearms seized and forfeited were found to be missing. The auditor cited a lack of policies and procedures in place to safeguard and track seized items.

The audit said the District Attorney’s Office disagreed it lacked proper policies and procedures to safeguard seized property but conceded that the three firearms were missing and steps had been taken to report the guns as stolen to a federal database. Mashburn could not be reached for comment on the finding.

Under Loveless’ Senate Bill 838, a criminal case would have to be brought against the property or cash owner before forfeiture actions could be filed against the property or cash in civil court. Also, seized funds would be deposited into the state’s general revenue fund. The proposed law would also raise the burden of proof required in forfeiture cases.

Loveless’ bill is based on a similar one voted into law in March in New Mexico.

“It will keep the practice in place, but it takes away the possibility of an innocent person getting their stuff taken and also takes away the possibility for financial abuse on the back end,” Loveless said.